Making cuts without bruises

first_img Previous Article Next Article Comments are closed. Related posts:No related photos. Making cuts without bruisesOn 1 Dec 2001 in Personnel Today Britishbusinesses fear continental-style consultation will impede their ability to actquickly when the commercial need arises. But existing UK consultation laws arealready some of the toughest to work with- and treating them as an annoyingformality could do damage, warns Christopher MordueAsbusiness headlines are dominated by announcements of large-scale job cuts andunion complaints of non-consultation, controversial proposals are beingdeveloped in Europe which would give workers greater consultation rights inadvance of redundancies, restructurings and other major business decisions. UKbusiness leaders fear the introduction of “continental style”obligations requiring worker participation in business planning, under which decisionstaken without consultation would be void. The much publicised difficulties ofMarks & Spencer’s closure of its French stores are cited as an example ofhow such rules could impede swift business responses to adverse economicconditions.Thedraft directive is a long way from being European, let alone UK, law. In themeantime, the impact of existing rules on collective redundancy consultation –under section 188 of Trade Union and Labour Relations (Consolidation) Act 1992– should not be underestimated. The sanctions for non-compliance are among themost draconian in UK employment law. At a maximum of 90 days’ pay per affectedemployee, protective awards can run into many hundred thousand pounds. Manyemployers do not fully appreciate the extent of the obligation to consult (seebox “What is consultation”) or regard it as a frustrating andinconvenient formality. Advantagesof early consultationConsultationmust begin within minimum time periods before the first dismissal takes effect.The express purpose of this rule is to delay redundancies, and allowconsultation to take place. Further delays arise because consultation can onlybegin when statutory information (see box “What information must bedisclosed?) is provided to representatives of affected employees. Where thereare no trade union representatives the employer must first of all arrange foremployee representatives to be elected, postponing the start of the 30- or90-day period. Inany event, the end of the 30- or 90-day period is not necessarily the earliestdate at which redundancies can occur. Preliminary steps before dismissal willtypically include consultation over whether redundancies should occur at all,consultation over selection criteria and alternative employment, theapplication of the selection criteria, individual consultation over redundancyselection and alternative employment, followed by the giving of notice.Employers need to take full account of each step and recognise that the processcan take considerable time if financial penalties are not to be incurred.Naturally,these problems are eased if consultation begins at an early stage.Nevertheless, many employers delay consultation until very late in theirdecision-making process. This postpones the point at which the employer can legitimatelymake the first dismissal, and makes it harder to demonstrate genuineconsultation with an open mind. A natural tendency to consult only afteralternatives to redundancy (such as part-time working or temporary lay offs)have been considered and rejected by management results in an inflexibleposition that makes consultation appear a mere formality. Itis not essential to provide all of the statutory information to employeerepresentatives at the outset of consultation. Some items may require detailedpreparatory work, in particular selection criteria and any enhanced redundancyterms. The first issue for consultation is always whether redundancies arenecessary at all or in the numbers proposed. So employers could beginconsultation on these issues and provide the remaining information at a laterdate.Successfulconsultation is a resource – and a time-intensive operation. It requires thebacking of managers and HR including detailed communications to announce theredundancies (including external announcements to customers and the DTI) and toexplain the proposals to affected employees, organising the election ofrepresentatives and collating information. Take care that the proposals are notannounced as a “done deal”. As the consultation process unfoldsemployees should be advised of the progress and outcomes of consultation. Itcan be particularly important to communicate directly and regularly withaffected employees, rather than leaving it to elected or trade unionrepresentatives. With large-scale redundancies or site closures, employers mayneed to arrange retraining to enable employees to be redeployed internally orassist with finding alternative employment – or organise job fairs to putemployees in touch with prospective employers. EmployeerepresentationInthe absence of a recognised trade union for affected employees, you mustarrange for the election of employee representatives. There are specificstatutory rules for these elections which go beyond the simply procedural. Youmust ensure that affected employees are adequately represented. The key issueis whether the affected employees should elect representatives as one group, orwhether a number of smaller “constituencies” should elect their ownrepresentatives. This latter approach may be particularly appropriate if arange of employees are affected in different ways, or to ensure that thesegroups are properly represented. If affected employees elect representatives asa single group, the outcome may leave some effectively unrepresented.Thereare opportunities here to maximise the efficiency of the consultation process.Where different types of employees are affected at the same establishment,there will inevitably be some issues that are not of common interest. Forexample, selection criteria may differ, at least in detail, between differentredundancy pools. It may, therefore, be useful to be able to consult separategroups simultaneously on specific aspects of the proposals, streamlining theconsultation process and ensuring that consultation is directly targeted foreach group.Thereis no prescribed ratio of representatives to affected employees. The numbersshould be dictated by the consultation structure you wish to achieve. Thegreater the number of representatives, the greater the flexibility to set upspecific sub-committees to work on a number of issues simultaneously. It isalso advisable that at least two or three representatives from each groupshould be elected, to avoid the need for further elections if a representativeleaves (such as through voluntary redundancy).VoluntaryredundanciesOnemethod of implementing redundancies within the consultation period is to invitevolunteers. This is usually desirable in any event to reduce the need forcompulsory redundancies. Employers will typically offer more generous terms tovolunteers and impose a time limit for applications. Though in theory even avoluntary dismissal inside the period for consultation will be a breach ofsection 188, the risk of a significant protective award is small, particularlyif representatives agree to an early leaving date.Considervery carefully the details of any voluntary redundancy scheme. Will it be openonly to affected employees, to reduce the need for selection? Will it beoffered to unaffected employees to create re-deployment opportunities? If so,will acceptance be conditional on an affected employee taking up the role? Ifnot, the additional dismissals may cause the employer to exceed the number ofproposed redundancies, affecting the length of the consultation period. Whencan the employer dismiss?Dismissalsmust not “take effect” during the consultation period. This refers tothe actual termination of the employment contract.  Consequently, you can give notice of dismissal during the 30- or90-day period. But be cautious about the timing of redundancy notices:consultation – at least over whether and how redundancies should occur – cannottake place after notice is given. Notice should only be given during thisperiod where it has been agreed with representatives or where consultation hasbeen exhausted without agreement being reached. Note also that individualconsultation will be required, particularly over selection for redundancy andalternative employment, before notice can be given.Canthe obligation be avoided?Asbox “Size matters” indicates, the key to the application of section188 is the number of redundancies proposed by a particular employer at aparticular establishment within any 90-day period. If redundancies are keptbelow 20 in any 90-day period, the obligation to consult does not arise. Wherethe numbers to be dismissed at the particular establishment are kept below 100,a consultation period of 30, rather than 90, days applies. If there iscommercial flexibility as to where redundancies are required, it is possible tomanipulate the scale of proposed redundancies to your advantage – spreadingredundancies over time, between different employers or different establishments– to avoid or limit the requirement to consult. Butoutright avoidance of the consultation obligation, where it applies, isdifficult and dangerous. The defence of “special circumstances” isvery hard to establish. Not only must these circumstances render consultationnot reasonably practicable, they must be “special”, that is, out ofthe ordinary. Even where special circumstances do exist the employer is notexcused entirely from its obligations, but must take such steps as arereasonably practicable towards compliance.Staggeringredundancy proposals can minimise the extent of consultation. When calculatingthe numbers of proposed dismissals, redundancies in respect of whichconsultation has already begun are discounted. An employer already consultingover 20 redundancies could propose another 99 within the same 90 day periodwithout triggering a 90-day consultation period. Deliberately staggeringredundancy announcements in this way, however, is highly dangerous. If theemployer is found to have envisaged 119 redundancies all along, it will bevulnerable to a protective award.Whilelarge-scale redundancies will always face opposition, genuine consultation willat least soften the blow by explaining the basis for the decision. Employersshould also keep one eye on the morale of their remaining workforce – pushingredundancies through without consultation may send a very negative message andlead employees to vote with their feet.   ChristopherMordue is an associate at Pinsent Curtis BiddleWhatis consultation?–Consultation must always cover ways and means of avoiding redundancies,reducing their number, and mitigating their consequences–Employers cannot argue that consultation would have made no difference–Consultation must be undertaken with a view to reaching agreement, althoughactual agreement is not required–Consultation must be undertaken with an open mind, before an irrevocabledecision is taken and while proposals are still at a formative stage–Sufficient information must be provided to allow those being consulted toproperly understand the proposals and reasons for them–”Redundancy” means any dismissal which is not for a reason relatingto an individual employee–Dismissal includes the termination of any contract of employment and the expiryof fixed-term contracts without renewalWhatinformation must be disclosed?Consultationbegins by providing the following information to representatives–A statement of the proposed dismissals and the reasons for them–The numbers and descriptions of employees for proposed redundancy and the totalnumber of employees of those descriptions employed at that establishment–The proposed method of selecting employees for dismissal and the proposedmethod of carrying out the dismissals, with due regard to any agreed procedure,including the period over which the dismissals are to take effect–How non-statutory redundancy payments will be calculatedTheDTI must also be informed of the proposed redundancies, using form HR1. Failureto notify is a criminal offenceSizematters: how the obligation is triggered–Consultation is required where an employer proposes to dismiss 20 or moreemployees as redundant at one establishment within 90 days or less–In the case of 100 redundancies or more, consultation must begin at least 90days before the first dismissal–Otherwise consultation must begin at least 30 days before the first dismissal–Each group company is a separate employer–Each geographical location is usually, though not always, a separate”establishment”last_img read more

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Film Review: Lagerfield Confidential

first_imgby Mary WaireriRodolphe Marconi’s Lagerfeld Confidential is an intimate portrait of one of the most iconic figures of the fashion industry. Born in Hamburg in 1938, Lagerfeld moved to Paris at 14 and by 20 was working for established fashion houses such as Valentino. Since then, Lagerfeld has designed for Chloe and redefined Chanel. He has been so influential in the fashion world that Vogue named him “the unparalleled interpreter of the mood of the moment”. Marconi followed Lagerfeld for two years, enjoying unprecedented access both to Lagerfeld’s public and private life, producing over 200 hours of footage. Luckily, the film is only 87 minutes long, and all the better for it. The result is a dense, skillfully edited documentary that does not waste a single frame. Marconi is adamant that Lagerfeld Confidential should be taken seriously as a film; “it is not another film about fashion or ‘appearances’. Rather, it is a human portrait of an exceptional man.” It is easy to see why Marconi chose Lagerfeld as his subject; he’s intense, compelling and witty and the film captures Lagerfeld’s many quirks and idiosyncracies perfectly. He is a man who is at once an integral contributor to the fashion industry yet strangely removed from it. Furthermore, he is fiercely independent, living largely in physical and emotional isolation from others. In fact at one point he claims “I don’t want to be a reality in people’s life, I want to be like an apparition”. This sentiment sums up the impression the viewer is left with by the end of Lagerfeld Confidential. Lagerfeld is an intriguing character but he remains inaccessible to us in many ways. This is partly Marconi’s failing; he displays a laughable level of coyness when questioning Lagerfeld on his sexual relationships and positively skims over more awkward lines of questioning – in particular, the moment when Lagerfeld explains his mother’s hostility towards him when he was sexually abused as a child. Therefore, the most important criticism of Lagerfeld Confidential as a documentaty is that it feels somewhat superficial. Many of the insights into Lagerfeld’s personal relatonships and upbringing are interesting but Marconi seems reluctant to probe too deeply, which is difficult to understand considering the rapport he clearly established with his subject in the period of filming. The fashion world is almost exclusively painted as a hollow and intellectually bankrupt environment so Lagerfeld Confidential is an achievement in showing us the humanity behind the Haute Couture. Lagerfeld Confidential is unexpectedly engaging but ultimately falls short because of its failure to give us a more complete impression of itslast_img read more

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Pictures as narrative

first_img“I was fascinated by this idea of an impoverished elite,” Lauren Greenfield told a Harvard crowd last Thursday. The photographer and documentary filmmaker was referring to her College thesis, a series of intimate images that captured the daily lives of French aristocrats who had lost their fortunes.Greenfield ’87 explained that the notion of the once-rich struggling to find their way resonated with her and her experience growing up Los Angeles, where glitz and glamour were the norm and a person’s worth often seemed to be less about deeds than income.“Class was defined exclusively by money.”Greenfield’s powerful senior project helped launch her career. The work drew the attention of National Geographic, where she became an intern, her first step in a career that has included work with The New Yorker, The New York Times Magazine, Le Monde, The Guardian, and Vanity Fair. In 2006, Greenfield made her first feature-length documentary. “Thin,” about patients in a center that treats eating disorders, was distributed by HBO.Greenfield’s return to campus was an entry in the Office for the Arts’ “Harvard JAMS!” series. The sessions connect students and members of the Harvard community with alumni who have made a career in entertainment or the arts.Many of Greenfield’s images seem to echo themes from her youth, and her later reaction to materialism and celebrity. Explorations of beauty, body image, and consumerism have been important aspects of her work.Greenfield concentrated in visual and environmental studies at Harvard and produced her first monograph, “Fast Forward: Growing Up in the Shadow of Hollywood,” a decade after she graduated. The project tracked a mix of privileged and poor students who attended her Los Angeles high school.“I’ve always been interested in documenting people in a cultural context … [and] fascinated by cultural values, cultural identity, and ritual,” she said.The impoverished elite was again the focus of Greenfield’s gaze in her 2012 documentary “The Queen of Versailles.” The film follows a couple as their plans to build a 90,000-square-foot palace in Florida, billed as the largest private home in the United States, grind to a halt amid a faltering economy. Greenfield was praised for her ability to reflect the same fear that flooded the nation — albeit on a larger scale — as millions of Americans struggled to keep their homes.“I do kind of try to show their humanity, so that they are a mirror for us,” she said. “I think that is kind of the point; not criticizing different people, but seeing how they reflect the culture and how that affects us.”Greenfield’s early interest in photography had much to do with her exposure to the work of street photographers of the 1960s and ’70s, especially masters such as Robert Frank and Garry Winogrand, whose pictures, she said, commented on society and revealed “something previously unrevealed.”Her time at Harvard also helped her find her artistic path. Greenfield singled out her former professors Robb Moss, the current chair of Harvard’s Department of Visual and Environmental Studies, and Barbara Norfleet for their inspiration and guidance.“What I see, looking back, is that my work has been a process of going deeper and deeper into the photography and the filmmaking and the sociological and anthropological approach that I was introduced to as an undergrad,” said Greenfield, who is at work on a thematic retrospective examining notions of wealth and the American dream.“In a way, the connection to my undergraduate studies has become more meaningful over the years rather than less. And so I am really grateful for my experience here.”last_img read more

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Exclusive! Jonathan Groff on Why He’s Returning to B’way in Hamilton

first_img View Comments Stage and screen favorite Jonathan Groff is a busy man! He will headline William Finn’s A New Brain for Encores! Off-Center later this month, before returning to the Great White Way in July to star as King George III in Hamilton. “I’m so excited,” the Tony nominee exclusively told Broadway.com about appearing in Lin-Manuel Miranda’s new musical. “It’s just such a great thing for the community, for everyone, that the show is going to be on Broadway.””Lin’s a genius and I think he managed to do this impossible thing,” said Groff. “He somehow created something that was artistically challenging, groundbreaking, new, surprising, thought-provoking and also completely commercial.” The three-time Broadway.com Audience choice award winner is especially looking forward to the impact that the tuner will have on audiences. “I think about the high school students and the young artists that will come and see a show like Hamilton and then create the next version of that for us.” (No pressure then, if you’ve bought tickets!)Groff took over as King George during Hamilton’s run off-Broadway at the Public Theater for Tony nominee Brian d’Arcy James, who departed the production to star in Something Rotten!. Groff won three Broadway.com Audience Choice Awards and was nominated for a Tony Award for playing Melchior in Spring Awakening. For the Public Theater, he previously starred in Hair at the Delacorte Theatre in Central Park and The Bacchae. Other off-Broadway credits include The Submission, The Singing Forest and Prayer for My Enemy. He was also seen in Deathtrap in London’s West End and Red at the Mark Taper Forum in Los Angeles. Screen credits include the gay-themed drama Looking on HBO and Glee.Hamilton will begin previews on July 13 at the Richard Rodgers Theatre, with opening night set for August 6. Hamilton from $149.00 Jonathan Groffcenter_img Related Shows Star Files Lin-Manuel Mirandalast_img read more

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Twilight Tour.

first_imgBlueberry growers will find lots of information and supper, too, at the informal twilight tour of University of Georgia Blueberry Research Farm May 2 near Alapaha, Ga. The farm tour will begin at 5 p.m., and a cookout will follow.The tour will offer a firsthand look at research and demonstration projects on many aspects of blueberry production. Experts in horticulture, plant pathology, entomology and weed control will be there to interact with growers. Stay as long as you like.Please call ahead, though, let the organizers know you’re planning to attend. Or let your county Extension Service agent know you plan to come.Alapaha, Ga., is 17 miles east of Tifton on U.S. Highway 82. The entrance to the research farm is 2.5 miles south of Alapaha (going toward Nashville, Ga.) on U.S. 129. Look for a “Blueberry Farm” sign on the right.If you have questions or plan to come, call Scott NeSmith at (770) 228-7243 or Gerard Krewer at (229) 386-3410.last_img read more

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Saint Michael’s professor’s discovery named a top 10 breakthrough for 2011 by Physics World

first_imgSaint Michael’s College,Physics World announced its top 10 breakthroughs for 2011 today. Coming in at number 10 is Saint Michael’s College Professor John O’Meara, with his colleagues Michele Fumagalli and Xavier Prochaska of the University of California, Santa Cruz, for their discovery of clouds of pristine gas from the very early universe’a triumph of Big Bang cosmology. The team was lauded by Physics World for being ‘the first to catch sight of clouds of gas that are pure relics of the Big Bang. Unlike other clouds in the distant universe ‘ which appear to contain elements created by stars ‘ these clouds contain just the hydrogen, helium and lithium created by the Big Bang. As well as confirming predictions of the Big Bang theory, the clouds provide a unique insight into the materials from which the first stars and galaxies were born.’ See the full announcement online: http://physicsworld.com/cws/article/news/48126(link is external)  See the story of O’Meara’s discovery ‘Pristine relics of the Big Bang spotted’ on physicsworld.com ‘ http://physicsworld.com/cws/article/news/47769(link is external). ‘We are grateful and delighted to have been named a top10 breakthrough in astrophysics, but there is plenty of work still to be done,’ Professor O’Meara said. Criteria for selecting the top 10 breakthroughs awardThe top 10 breakthroughs list has been compiled by the Physics World team, who reviewed over 350 news articles about breakthroughs in the physical sciences published on physicsworld.com in 2011. The criteria for judging included: fundamental importance of researchsignificant advance in knowledge,strong connection between theory and experiment,general interest to all physicists A story of the astronomical break-through discovery appeared in Science, the premier science journal in the U.S., November 10, 2011.Using the giant 10-meter Keck I telescope in Hawaii, the three astronomers discovered two giant clouds of intergalactic gas whose chemical composition has been unaltered since the dawn of time.  The clouds, located over 11 billion light years from Earth, offer direct supporting evidence for the Big Bang model of cosmology.O’Meara explained that in the Big Bang model only the very lightest elements such as Hydrogen and Helium were created during the first few minutes of the history of the universe.  As cosmic time progressed over billions of years to the present, gas containing these few elements form stars and galaxies.  As part of the life cycle of stars, the remaining elements, such as carbon, nitrogen and oxygen, are produced and recycled into the gas within and outside of galaxies.  Until now, astronomers have always detected these heavy element remnants wherever they’ve looked.Gas with no trace of heavy elements was the break-through discovery‘These clouds are exciting for both what they do and don’t have’ Saint Michael’s Professor O’Meara said. ‘Specifically, they represent the first detection of pristine gas: gas with no trace whatsoever of heavy element absorption.  What the gas does contain, however, is hydrogen and its isotope deuterium in the levels predicted by Big Bang models’ Although the discovery is a triumph for the Big Bang cosmology, O’Meara points out that it raises new questions. ‘A good overall model of cosmology, but plenty of work to do,’ O’Meara said.‘These clouds have been uncontaminated by heavy elements for over two billion years since the Big Bang. This means that our understanding of how galaxies return heavy elements to their environments is incomplete.  Although we’ve provided great evidence that our overall model of cosmology is a good one, we still have plenty of work left to do.’  Learn What Matters at Saint Michael’s College, The Edmundite Catholic liberal arts college, www.smcvt.edu(link is external)  . Saint Michael’s provides education with a social conscience, producing graduates with the intellectual tools to lead successful, purposeful lives that will contribute to peace and justice in our world. Founded in 1904 by the Society of St. Edmund and headed by President John J. Neuhauser, Saint Michael’s College is located three miles from Burlington, Vermont, one of America’s top college towns. Identified by the Princeton Review as one of the nations Best 376 Colleges, and included in the 2012 Fiske Guide to Colleges, Saint Michael’s has 1,900 undergraduate students and 500 graduate students. Saint Michael’s students and professors have received Rhodes, Woodrow Wilson, Pickering, Guggenheim, Fulbright, and other grants. The college is one of the nation’s top-100, Best Liberal Arts Colleges as listed in the 2012 U.S. News & World Report rankings.last_img read more

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Macquarie, Iberdrola form joint venture to develop 3.3GW of offshore wind in Japan

first_img FacebookTwitterLinkedInEmailPrint分享Offshore Wind Journal:Macquarie’s Green Investment Group (GIG) has formed a joint venture with Iberdrola to co-develop a 3.3-GW portfolio of three bottom-fixed and three floating offshore wind projects in JapanThe offshore wind projects were initiated and have been developed to date through Macquarie’s renewable energy platform, Acacia Renewables. Iberdrola will acquire Acacia Renewables and take forward the existing offshore wind development pipeline alongside GIG as a joint venture. GIG will hold an equal share in the six projects with Iberdrola and provide development and commercial advisory services to the portfolio.Under Iberdrola’s ownership, Acacia will focus on the development of offshore wind projects, while its existing onshore wind development business will be taken forward by GIG.Acacia Renewables currently has two offshore windfarms under development, with a combined capacity of up to 1.2 GW, which could be operational by 2028. The company also has four other projects in its pipeline, with a total capacity of 2.1 GW.The operation is in line with the company’s strategy, allowing Iberdrola to position itself in the early development stage of Japan’s offshore wind market, which has strong growth potential. The deal also gives Iberdrola access to a diversified project pipeline, located in different areas of the southwest of the country, in what it said is an optimal manner for the auctions announced by the Japanese Government.The joint venture brings together GIG’s offshore wind expertise and commitment to the Japanese market with Iberdrola’s technical capabilities and operational excellence. The joint venture is GIG’s second joint venture with Iberdrola – the partners currently co-own the 714-MW East Anglia One offshore windfarm in the UK.[David Foxwell]More: Iberdrola and Green Investment Group to co-develop 3.3-GW portfolio in Japan Macquarie, Iberdrola form joint venture to develop 3.3GW of offshore wind in Japanlast_img read more

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Ultra Race of Champions

first_imgLast weekend I traveled to Charlottesville, VA to compete in the TrailRunner Ultra Run of Champions, otherwise known as the UROC. Originally the brainchild of ultrarunners Russell Gill and Francesca Conte, co-owners of the Charlottesville Running Company, the goal of this event was simple yet ambitious: to create “the Championship Event for the sport of Ultra Distance Running.”Once Gill and Francesca put the word out about their plan, sponsors and elite runners alike jumped on board. TrailRunner Magazine and iRunFar.com both signed on to promote the race and promote they did, with prerace interviews and predictions, live race coverage, and plenty of video footage of the event.Elite runners from across the country juggled their fall race plans in order to make the trip to Virginia. The week before the race, the official website listed 25 men and 8 women as comprising the elite field. The number of national championships, victories, and course records among this group of athletes was astonishing. Two of these runners, Michael Wardian and Devon Crosby-Helms, had just competed in the World Cup 100km in the Netherlands two weeks before, Michael’s silver medal performance leading the U.S. men’s team to its first team gold.Unfortunately, by race day, both the men’s and women’s fields had diminished due to injuries and other unforeseen circumstances. The women’s field, in particular, dwindled down to four runners, leading Gill to allow an additional female to join the elite start, fifteen minutes ahead of the open field. As a competitor, the lack of a deep field was disappointing although we made jokes about it at the start, commenting that we would all get a payday for just finishing the race.Prior to the race, there had been much discussion on various blogs about the validity of this particular “championship”. Creating a championship for ultrarunning is harder than it seems. Although it is tempting to group all ultramarathoners together, the reality is that every runner has unique strengths that allow him or her to prevail on certain types of courses. There are the roadies, who exhibit good turnover and an uncanny ability to maintain an even pace over many miles. There are the trail animals who excel on the gnarliest single-track imaginable. There are 50k specialists who can complete their race in less than four hours, and 100 milers who may see the sun rise and set multiple times in the course of one race. 1 2last_img read more

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Proposed criminal jury instructions

first_img Proposed criminal jury instructions Proposed criminal jury instructions March 1, 2005 PUBLIC SERVANT Regular Newscenter_img The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted to the Florida Supreme Court a report proposing revisions to the Florida Standard Jury Instructions in Criminal Cases. The Court invites all interested persons to comment on the committee’s proposed amendments, which are reproduced in full below, as well as online at www.floridasupremecourt.org/decisions/proposed.shtml. An original and nine paper copies of all comments must be filed with the court on or before April 1, with a certificate of service verifying that a copy has been served on the committee chair, Judge Dedee S. Costello, Bay County Courthouse, P.O. Box 1089, Panama City 32402-1089, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Please label envelope to avoid erasure. IN THE SUPREME COURT OF FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (NO. 2004-1), CASE NO. SC04-2481 Proposal 1. Revised instruction for justifiable use of deadly force 3.6(f) JUSTIFIABLE USE OF DEADLY FORCE Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. Read in all cases An issue in this case is whether the defendant acted in self defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly forcelikely to cause death or great bodily harm . “Deadly force” is defined as force likely to cause death or great bodily harm. ­ Give if applicable § 782.02, Fla. Stat. The use of deadly force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting: 1. another’s attempt to murder [him] [her], or 2. any attempt to commit (applicable felony) upon [him] [her], or 3. any attempt to commit (applicable felony) upon any dwelling house occupied by [him] [her], or 4. any attempt to commit (applicable felony) in any dwelling house occupied by [him] [her]. Insert and define appli­cable felony that defendant alleges victim attempted to commit Give if applicable §§ 776.012, 776.031, Fla.Stat. A person is justified in using deadly force likely to cause death or great bodily harm if [he] [she] reasonably believes that such force is necessary to prevent 1. imminent death or great bodily harm to [himself] [herself] or another, or 2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another. Insert and define appli­cable forcible felony that defendant alleges victim was about to commit Aggressor § 776.041, Fla.Stat. However, the use of deadly force likely to cause death or great bodily harm is not justifiable if you find: Give if applicable ­ 1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony) ; or Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. 2. (Defendant) initially provoked the use of force against [himself] [herself], unless: a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force likely to cause death or great bodily harm to (assailant) . b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force likely to cause death or great bodily harm , but (assailant) continued or resumed the use of force. Force in resisting arrest § 776.051(1), Fla.Stat. A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be, or reasonably appears to be a law enforcement officer. Give if appli­cable However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another) , but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla.Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla.Stat., may need to be given in connection with this instruction. Read in all cases ­ In deciding whether defendant was justified in the use of deadly force likely to cause death or great bodily harm , you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force likely to cause death or great bodily harm , the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. Necessity to avoid use of deadly force. Read in all cases The defendant cannot justify the use of deadly force likely to cause death or great bodily harm unless [he] [she] used every reasonable means within [his] [her] power and consistent with [his] [her] own safety to avoid the danger before resorting to that force. Retreat. Read in all cases The fact that the defendant was wrongfully attacked cannot justify [his] [her] use of deadly force likely to cause death or great bodily harm if by retreating [he] [she] could have avoided the need to use that force. However, if the defendant was placed in a position of imminent danger of death or great bodily harm and it would have increased [his] [her] own danger to retreat, then [his] [her] use of deadly force likely to cause death or great bodily harm was justifiable. Defense of home. Give if applicable If the defendant was attacked in [his] [her] own home or on [his] [her] own premises, [he] [she] had no duty to retreat and had the lawful right to stand [his] [her] ground and meet force with force, even to the extent of using deadly force likely to cause death or great bodily harm if it was necessary to prevent: [death or great bodily harm to [himself] [herself] [another].] [the commission of a forcible felony.] Define felony Defense of home against co-occupant ­ If the defendant was attacked in [his] [her] own home or on [his] [her] own premises by [a co-occupant] [any person who was lawfully on the premises], the defendant had a duty to retreat within the residence to the extent reasonably possible without increasing [his] [her] own danger of death or great bodily harm. However, the defendant was not required to flee [his] [her] home and had the lawful right to stand [his] [her] ground and meet force with force, even to the extent of using deadly force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to [himself] [herself]. Prior threats. Give if applicable If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim) , then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force likely to cause death or great bodily harm , if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty. Reputation of victim. Give if applicable If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation. Physical abilities. Read in all cases In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim) . Read in all cases If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force likely to cause death or great bodily harm , you should find the defendant not guilty. ­ However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force likely to cause death or great bodily harm , you should find [him] [her] guilty if all the elements of the charge have been proved. Proposal 2. Revised instruction for justifiable use of nondeadly force 3.6(g) JUSTIFIABLE USE OF NONDEADLY FORCE Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence. Read in all cases An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of nondeadly force not likely to cause death or great bodily harm . Nondeadly force is defined as force not likely to cause death or great bodily harm. In defense of person § 776.012, Fla.Stat. (Defendant) would be justified in using nondeadly force not likely to cause death or great bodily harm against (victim) if the following two facts are proved: Give if applicable 1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful forceagainst the [defendant] [other person]. 2. The use of unlawful force by (victim) must have appeared to (defendant) ready to take place. In defense of property § 776.031, Fla.Stat. (Defendant) would be justified in using nondeadly force not likely to cause death or great bodily harm against (victim) if the following three facts are proved: ­ Give if applicable 1. (Victim) must have been trespassing or otherwise wrongfully interfering with land or personal property. 2. The land or personal property must have lawfully been in (defendant’s) possession, or in the possession of a member of [his] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect. 3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior. Aggressor § 776.041, Fla.Stat. The use of nondeadly force not likely to cause death or great bodily harm is not justifiable if you find: Give if applicable 1. (Defendant) was attempting to commit, committing, or escaping after the commission of a (applicable forcible felony) . Define applicable forcible felony 2. (Defendant) initially provoked the use of force against [himself] [herself], unless: a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using nondeadly force not likely to cause death or great bodily harm to (assailant) . b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of nondeadly force not likely to cause death or great bodily harm , but (assailant) continued or resumed the use of force. ­ Force in resisting arrest § 776.051(1), Fla.Stat. A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be or reasonably appears to be a law enforcement officer. Give the following instruction if applicable However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla.Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985). In some instances, the instructions applicable to § § 776.012, 776.031, or 776.041, Fla.Stat., may need to be given in connection with this instruction. Read in all cases In deciding whether the defendant was justified in the use of nondeadly force not likely to cause death or great bodily harm , you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of nondeadly force not likely to cause death or great bodily harm , the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real. Reputation of victim. Give if applicable If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation. Physical abilities. Read in all cases In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim) . ­ Read in all cases If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of nondeadly force not likely to cause death or great bodily harm , you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of nondeadly force not likely to cause death or great bodily harm , then you should find [him] [her] guilty if all the elements of the charge have been proved. Proposal 3. Revised instruction for rules for deliberation 3.10 RULES FOR DELIBERATION These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict: 1. You must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter. 2. This case must be decided only upon the evi­dence that you have heard from the testimony of the witnesses [and have seen in the form of the exhibits in evidence] and these instruc­tions. 3. This case must not be decided for or against anyone because you feel sorry for anyone, or are angry at anyone. 4. Remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case. When the jury is to be involved in a penalty phase, omit the second sentence of paragraph 5. 5. Your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge’s job to determine a prop­er sentence if the defendant is found guilty. ­ 6. Whatever verdict you render must be unani­mous, that is, each juror must agree to the same verdict. Give 7 if applicable 7. It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about [his] [her] testimony. 8. Your verdict should not be influenced by feel­ings of prejudice, bias or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions. Proposal 4. Revised instruction for aggravated child abuse 16.1 AGGRAVATED CHILD ABUSE § 827.03(2), Fla.Stat. To prove the crime of aggravated child abuse Aggravated Child Abuse , the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant) Give as applicable a. committed aggravated battery upon (victim) . b. willfully tortured (victim) . c. maliciously punished (victim) . d. willfully and unlawfully caged (victim) . e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement. 2. (Victim) was under the age of 18 years. ­ Definitions: Give as applicable In order to prove that an aggravated battery was committed, the state State must prove the following: 1. (Defendant) intentionally Give as applicable a. touched or struck (victim) against the will of (victim) . b. caused bodily harm to (victim) . 2. In so doing, (defendant) intentionally or knowingly caused [great bodily harm] [permanent disability] [permanent disfigurement] or [used a deadly weapon]. A weapon is a “deadly weapon” if it is used or threatened to be used in a way likely to produce death or great bodily harm. “ Willfully” means knowingly, intentionally, and purposely. “ Maliciously” means done from ill will, hatred, spite, or an evil intent wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury . Give in all cases if 1(e) is alleged “Child Abuse” means [the intentional infliction of physical or mental injury upon a child] [an intentional act that could reasonably be expected to result in physical or mental injury to a child] [active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child]. ­ Proposal 5. Revised instructions for bribery offenses 19.1 BRIBERY OF PUBLIC SERVANT § 838.015(1), Fla.Stat. To prove the crime of Bribery of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was made for the purpose of corruptly influencing (person bribed) in the performance of some act or omission that Give 4a or 4b as applicable a. [ (defendant) believed to be [within the official discretion of (person bribed) ] . ] . [in violation of a public duty of (person bribed) ] . ] . [in performance of a public duty of (person bribed) ] . ] . b. [ (person bribed) represented as being [within [his] [her] official discretion ] . ] . [in violation of [his] [her] public duty ] . ] . [in performance of [his] [her] public duty ] . ] . ­ Definition § 838.014(6), Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of the [his] [her] public duties. The court now instructs you that a (office of person bribed) is a public servant. § 838.015(2), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the act with respect to which the bribe was [given] [offered] [promised] was properly pending before (person bribed) , or that by law it might be properly brought before [him] [her], or that [he] [she] was qualified to act in the desired way, or that [he] [she] had jurisdiction over the matter, or that [his] [her] official action was necessary to achieve the purpose of the defendant. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. 19.2 BRIBERY BY PUBLIC SERVANT § 838.015(1), Fla.Stat. To prove the crime of Bribery by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) was a (office of defendant) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as ( read from charge) . ­3. The (read from charge) was something of value, benefit or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was made with intent of corruptly being influenced in the performance of some act or omission that Give 4a or 4b as applicable a. [ (person making bribe) believed to be [within the official discretion of (defendant) ] . ] . [in violation of a public duty of (defendant) ] . ] . [in performance of a public duty of (defendant) ] . ] . b. [(defendant) represented as being [within [his] [her] official discretion ] . ] . [in violation [his] [her] public duty ] . ] . [in performance of [his] [her] public duty ] . ] . Definition § 838.014(6), Fla.Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of the public servant’s public duties . The court now instructs you that a (office of defendant) is a public servant. § 838.015(2), Fla.Stat. ­ In order for the defendant to be guilty, it is not necessary that the act with respect to which [the bribe was [requested] [solicited] [accepted]] [an agreement was reached for the bribe] was properly pending before the defendant, or that by law it might be properly brought before [him] [her], or that [he] [she] was qualified to act in the desired way, or that [he] [she] had jurisdiction over the matter, or that [his] [her] official action was necessary to achieve the purpose of the person making the bribe. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. 19.3 BRIBERY UNLAWFUL COMPENSATION OR REWARD OF PUBLIC SERVANT § 838.016(1), Fla.Stat. To prove the crime of Bribery Unlawful Compensation or Reward of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was corruptly made for the past, present, or future performance, nonperformance, or violation of any act or omission of (person bribed) that Give 4a or 4b as applicable a. [ (defendant) believed to be [within the official discretion of (person bribed) ] . ] . ­[in violation of a public duty of (person bribed) ] . ] . [in performance of a public duty of (person bribed) ] . ] . b. [ (person bribed) represented as being [within [his] [her] official discretion] . ] . [in violation of [his] [her] public duty] . ] . [in performance of [his] [her] public duty].] Definition § 838.014(6) Fla.Stat “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties . The court now instructs you that a (office of person bribed) is a public servant. § 838.016(3), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the exercise of official discretion or violation of a public duty or performance of a public duty for which the bribe was [given] [offered] [promised] was accomplished or was within the official discretion or public duty of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. § 838.016(1), Fla.Stat. ­ There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. 19.4 BRIBERY UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT § 838.016(1), Fla.Stat. To prove the crime of Bribery by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Defendant) was a (office of defendant) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was corruptly made for the past, present, or future performance, nonperformance or violation of any act or omission of (defendant) that Give 4a or 4b as applicable a. [ (person making bribe) believed to be [within the official discretion of (defendant) ] . ] . [in violation of a public duty of (defendant) ] . ] . [in performance of a public duty of (defendant) ] . ] . b. [ (defendant) represented as being [within [his] [her] official discretion] . ] . ­[in violation of [his] [her] public duty] . ] . [in performance of [his] [her] public duty] . ] . Definition § 838.014(6), Fla.Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] the public servant’s public duties . The court now instructs you that a (office of defendant) is a public servant. § 838.016(3), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the exercise of official discretion or violation of a public duty or performance of a public duty for which the bribe was requested or solicited was accomplished or was within the official discretion or public duty of the defendant. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. § 838.016(1), Fla.Stat. There is no prohibition against a public servant accepting a reward for services performed in apprehending a criminal. Therefore, if the evidence presents a factual issue on this point, an appropriate instruction should be given. 19.5 BRIBERY UNLAWFUL COMPENSATION OR REWARD OF PUBLIC SERVANT § 838.016(2), Fla.Stat. ­ To prove the crime of Bribery Unlawful Compensation or Reward of a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [gave] [offered] [promised] to (person bribed) the thing described in the charge in this case as (read from charge) . 3. The (read from charge) was something of value, benefit, or advantage to [ (person bribed) ] [a person in whose welfare (person bribed) was interested] not authorized by law . 4. The [gift] [offer] [promise] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission that Give 4a or 4b as applicable a. [ (defendant) believed to be [within the official discretion of (person sought to be influenced) ] . ] . [in violation of a public duty of (person sought to be influenced) ] . ] . [in performance of a public duty of (person sought to be influenced) ] . ] . b. [was represented to (defendant) as being [within the official discretion of (person sought to be influenced) ] . ] . [in violation of the public duty of (person sought to be influenced) ] . ] . [in performance of the public duty of (person sought to be influenced) ] . ] . ­ Definition § 838.014(6), Fla.Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of compensating or paying for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties . The court now instructs you that a (office of person bribed) is a public servant and that a (office of person sought to be influenced) is a public servant. § 838.016(3), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the exercise of influence for which the bribe was [given] [offered] [promised] was accomplished or was within the influence of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. 19.6 BRIBERY UNLAWFUL COMPENSATION OR REWARD BY PUBLIC SERVANT § 838.016(2), Fla.Stat To prove the crime of Bribery Unlawful Compensation or Reward by a Public Servant, the State must prove the following four elements beyond a reasonable doubt: 1. (Person bribed) was a (office of person bribed) . 2. (Defendant) [requested] [solicited] [accepted] [agreed to accept] from (person making bribe) the thing described in the charge in this case as (read from charge) . ­3. The (read from charge) was something of value, benefit, or advantage to [ (defendant) ] [a person in whose welfare (defendant) was interested] not authorized by law . 4. The [request] [solicitation] [acceptance] [agreement to accept] was corruptly made for the past, present, or future exertion of any influence upon or with (person sought to be influenced) regarding any act or omission which Give 4a or 4b as applicable a. [ (Person making bribe) believed to be [within the official discretion of (person sought to be influenced) ] . ] . [in violation of a public duty of (person sought to be influenced) ] . ] . [in performance of a public duty of (person sought to be influenced) ] . ] . b. [was represented to (person making bribe) as being [within the official discretion of (person sought to be influenced) ] . ] . [in violation of the public duty of (person sought to be influenced) ] . ] . [in performance of the public duty of (person sought to be influenced) ] . ] . Definition § 838.014(6), Fla.Stat. “Corruptly” means acting knowingly and dishonestly for a wrongful purpose done with a wrongful intent and for the purpose of obtaining or receiving compensation for any benefit resulting from some act or omission of a public servant that is inconsistent with the proper performance of [his] [her] public duties . ­The court now instructs you that a (office of person bribed) is a public servant and that a (office of person sought to be influenced) is a public servant. § 838.016(3), Fla.Stat. In order for the defendant to be guilty, it is not necessary that the exercise of influence for which the bribe was [given] [offered] [promised] was accomplished or was within the influence of the public servant whose action or omission was sought to be rewarded or compensated. Give if applicable § 838.014(4), Fla.Stat. For the purpose of the laws against bribery, any person who has been elected or appointed to, or who is a candidate for election or appointment to, any public office is regarded as already being in that office with respect to any transaction relating to an act to be done if and when [he] [she] actually assumes office. Proposal 6. Revised instruction for theft offenses 14.1 THEFT § 812.014, Fla.Stat. To prove the crime of Theft, the State must prove the following two elements beyond a reasonable doubt: 1. (Defendant) knowingly and unlawfully [obtained] [used] [endeavored to obtain] [endeavored to use] the (property alleged) of (victim) . 2. [He] [She] did so with intent to, either temporarily or permanently, [deprive (victim) of [his] [her] right to the property or any benefit from it.] [appropriate the property of (victim) to [his] [her] own use or to the use of any person not entitled to it.] Degrees; give if property is of monetary value up to extent of charge If you find the defendant guilty of theft, you must determine by your verdict whether: ­a. [The value of the property taken was $100,000 or more.] b. [The property taken was cargo valued at $50,000 or more that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.] c. [The property taken was cargo valued at less than $50,000 that has entered the stream of commerce from the shipper’s loading platform to the consignee’s receiving dock.] d. [The property taken was emergency medical equipment valued at $300 or more that was taken from a licenced facility or from an emergency medical aircraft or vehicle.] e. [The value of the property taken was $20,000 or more but less than $100,000.] f. [The value of the property taken was $300 or more but less than $20,000.] g. [The value of the property taken was less than $300.] Give if applicable h. [The property was [a will, codicil, or other testamentary instrument.] [a firearm.] [a motor vehicle.] [a commercially farmed animal.] [an aquaculture species raised at a permitted aquaculture facility.] [a fire extinguisher.] [2,000 or more pieces of fruit.] [taken from a posted construction site.] [a stop sign.] [anhydrous ammonia.] ] I. [The value of the property taken was $100 or more but less then $300, and was taken from [a dwelling] [the enclosed curtilage of a dwelling].] Inferences; give if applicable § 812.022(1), Fla.Stat. ­ Proof that a person presented false identification not current in respect to name, address, place of employment, or other material aspect in connection with the leasing of personal property, or failed to return leased property within 72 hours of the termination of the leasing agreement, unless satisfactorily explained, gives rise to an inference that the property was obtained or is now used with unlawful intent to commit theft. Inferences; give if applicable § 812.022(2), Fla.Stat. Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen. Definitions; give if applicable § 812.012(1), Fla.Stat. “Cargo” means partial or entire shipments, containers, or cartons of property which are contained in or on a trailer, motortruck, aircraft, vessel, warehouse, freight station, freight consolidation facility, or air navigation facility. § 812.014(2)(b)3, Fla.Stat. “Emergency medical equipment” means mechanical or electronic apparatus used to provide emergency service and care or to treat medical emergencies. § 395.002(10), Fla. Stat. “Emergency service and care” means medical screening, examination, and evaluation by a physician, or other medically appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists, and if it does, the care, treatment or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility. § 395.002(17), Fla.Stat. “Licensed facility” means a hospital, ambulatory surgical center, or mobile surgical facility licensed by the Florida Agency for Health Care Administration. See Chapter 395, Fla.Stat. § 812.014(2)(b)3, Fla.Stat. “Emergency medical aircraft or vehicle” means any aircraft, ambulance or other vehicle used as an emergency medical service vehicle that has been issued a permit in accordance with Florida law. § 812.012(3), Fla.Stat. “Obtains or uses” means any manner of ­ (a) Taking or exercising control over property. (b) Making any unauthorized use, disposition, or transfer of property. (c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise. (d) (1) Conduct previously known as stealing; larceny; purloining; abstracting; embezzlement; mis­application; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, deception; or (2) Other conduct similar in nature. “ Endeavor” means to attempt or try. § 812.012(4), Fla.Stat. “Property” means anything of value, and includes: real property, including things growing on, affixed to and found in land; tangible or intangible personal property, including rights, privileges, interests, and claims; and services. § 812.012(6), Fla.Stat. “Services” means anything of value resulting from a person’s physical or mental labor or skill, or from the use, possession, or presence of property, and includes: repairs or improvements to property; professional services; private, public or government communication, transportation, power, water, or sanitation services; ­ lodging accommodations; and admissions to places of exhibition or entertainment. § 812.012(10), Fla.Stat. “Value” means: The market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense. In the case of a written instrument that does not have a readily ascertainable market value, such as a check, draft, or promissory note, the value is the amount due or collectible. In the case of any other instrument that creates, releases, discharges or otherwise affects any valuable legal right, privilege, or obligation, the value is the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner suffered by reason of losing an advantage over those who do not know of or use the trade secret. If the exact value of the property cannot be ascertained, you should attempt to determine a minimum value. If you cannot determine the minimum value, you must find the value is less than $300. Amounts of value of separate properties, involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or several persons, may be totaled in determining the grade of the offense. Proposal 7. Revised grand jury handbook and grand jury instructions 30 GRAND JURY HANDBOOK INTRODUCTION (No Change) WHAT IS A GRAND JURY (No Change) TERM OF THE GRAND JURY (No Change) WHO ARE GRAND JURORS Grand jurors are United States citizens and Florida legal residents of this state and their respective counties who are at least 18 years of age and who possess a driver’s license or identification card issued by the Department of Highway Safety and Motor Vehicles, or who execute an affidavit indicating a desire to serve as a juror. All jurors are selected at random and their names are taken from lists prepared by the clerk of the circuit court. The process of selecting jurors is done in most counties by the county commissioners and in some counties by a specially constituted jury commission. The process of selecting the statewide grand jury is handled by the State Court Administrator for the Florida Supreme Court. When making up the jury list, the officers compiling it are required to select only citizens they believe to be law-abiding, and of proven integrity, good character, sound judgment and intelligence, and who are neither physically nor mentally infirm. DISQUALIFICATION TO SERVE AS A GRAND OR PETIT JUROR Any person who has been convicted of a felony or bribery , forgery, perjury, or larceny is disqualified to sit as a juror, unless his or her civil rights have been restored. A person under prosecution for any crime is disqualified. Most government officials are disqualified to serve on a jury. An elected public official is not eligible to be a grand juror. FREQUENTLY USED WORDS AND PHRASES (No Change) GRAND JURY AND PETIT JURY DISTINGUISHED There are two kind of juries: grand juries and petit juries. The grand jury consists of up to 23 not fewer than 15 nor more than 21 (or 18 for statewide grand jury) members. A petit jury, depending upon the type of trial, consists of either 6 or 12 members. The grand jury and the petit jury have entirely different purposes and functions. A petit jury actually tries a case and renders a verdict of guilty or not guilty after hearing both sides. A grand jury does not try a case on the issue of guilt or innocence. The grand jury rarely hears both sides. Its function is simply to hear witnesses as to a charge of crime, by the State, and to determine whether the person, or persons, so charged should be brought to trial. The grand jury has been called both a sword and shield of justice — a sword because it is a terror to criminals, a shield because it is protection of the innocent against unjust prosecution. The tremendous power of the grand jury obviously creates grave and solemn responsibilities to see that these powers are not perverted or abused. A grand jury, being possessed with these tremendous powers and unless motivated by the highest sense of justice, might find indictments not warranted by the evidence and thus become a source of oppression to the citizenry. Conversely, a misguided grand jury might dismiss charges against those who should be prosecuted. The importance of the grand jury’s power is emphasized by the fact that it is one of the most independent bodies known to the law. HISTORY OF THE GRAND JURY (No Change) THE GRAND JURY AS AN ACCUSING AND INVESTIGATIVE BODY (No Change) OFFICERS OF THE GRAND JURY ­The judge who presided over the empaneling of the grand jury in the “charge to the grand jury” advised you formally and in great detail as to how the grand jury is organized and functions. In summary, the grand jury consists of 18 or, in some places, of 23 15 but not more than 21 members. Its officers are the foreperson, who will preside over the grand jury deliberations to make sure they are carried on in an orderly fashion including overseeing the examination of the witnesses; a vice-foreperson, who will preside in the absence of the foreperson or if for any reason the foreperson is not able to carry out his or her duty; and the clerk, who will keep a record of the proceedings had before the grand jury and formally make return of these records to the clerk of the circuit court (or clerk of the Supreme Court in the case of the statewide grand jury) for safekeeping. The foreperson and vice-foreperson are appointed by the judge and the clerk is appointed by the foreperson (or in the case of the statewide grand jury, may be selected by the group). The state attorney (or the statewide prosecutor) or assistant state attorneys (or assistant statewide prosecutors) will act as the legal advisers to the grand jury. The grand jury also will be provided an official court reporter or recorder to record the testimony before the grand jury. If the grand jury has its own budget, a treasurer of the grand jury may also be appointed to keep account of all receipts and disbursements made to or from the grand jury budget. If any question should arise concerning how the grand jury shall operate or function, you may apply to the judge, who will advise you. PROCEDURES Not less than 18 15 members of a 23 member grand jury , and 15 of an 18-member statewide grand jury must always be present to constitute a quorum. If less than a quorum exists, the proceedings of the grand jury must be halted until a quorum is present. Grand jurors, who, because of an emergency, find that they will be unable to attend a grand jury session should advise the grand jury clerk or foreperson immediately. An affirmative vote of at least 12 members of the grand jury is necessary to the return of a true bill or indictment. Therefore, even though a quorum is present it still requires at least 12 votes of individual members, rather than a mere majority of those present, in order to return a true bill. PROCEEDINGS OF THE GRAND JURY (No Change) DETERMINATION WHETHER TO RETURN AN INDICTMENT OR A NO TRUE BILL When the grand jury has heard all necessary or available witnesses and is prepared to deliberate on the issue whether to indict or return a no true bill, the foreperson must compel all persons to leave the grand jury room except the members of the grand jury themselves. No other person is permitted in the grand jury room during its deliberations, even including the state attorney (or the statewide prosecutor), court reporter and interpreter. When the question of whether to indict or return a no true bill is presented, all grand jurors have the right to comment on the evidence and to express their views of the matter. Only when all members of the grand jury have expressed themselves and each has been given the opportunity to be heard should a vote be taken. A vote to return an indictment can be found only upon the affirmative vote of at least 12 members of the grand jury. Similar proceedings should be taken when the matter to be discussed is not a criminal charge or indictment but a presentment, as noted above. If all persons, except the grand jurors, are not removed from the grand jury room during its deliberations, any indictment or presentment would be nullified. THE STATE ATTORNEY (OR THE STATEWIDE PROSECUTOR) AS LEGAL ADVISOR TO THE GRAND JURY (No Change) SECRECY OF GRAND JURY PROCEEDINGS (No Change) PROTECTION AND IMMUNITY OF GRAND JURORS (No Change) ON BEING A GRAND JUROR — SOME PRACTICAL SUGGESTIONS (No Change) CONCLUSION (No Change) 31 FLORIDA GRAND JURY INSTRUCTIONS 1 PRELIMINARY STATEMENTS (No Change) ­ 2 INSTRUCTIONS ON CRIMINAL MATTERS 2.1 – 2.2 (No Change) 2.3 The guilt or innocence of a person indicted by the grand jury is determined by a trial jury that will be specially impanelled empaneled to try the case. The trial jury hears all the evidence, on both sides, in an adversary proceeding under the supervision of a trial judge. Upon the trial based upon the indictment the accused is entitled to be present and have the assistance of counsel and a verdict is rendered only after the accused has had an opportunity to see and hear the witnesses, examine the evidence and have the case argued by counsel. The trial jury will be charged by the trial judge on the law applicable to the case. These safeguards are designed to protect and preserve the constitutional rights of an accused. 2.4 – 2.10 (No Change) 3 CIVIL INSTRUCTIONS (No Change) 4 PROCEDURE 4.1 – 4.3 (No Change) 4.4 Every grand jury shall consist of not less than ____ 15 nor more than ____ 21 persons. At least ____ 15 of the jury must be present at all times when the jury is functioning. A favorable vote of not less than ____ 12 of those present is necessary to the finding of any Atrue bill,@ presentment or report. (The Statewide Grand Jury shall be composed of 18 members of which 15 members shall constitute a quorum.) 4.5 – 4.10 (No Change) 5 – 11 (No Change)last_img read more

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Small Craft Brewing Sets Sail in Amityville

first_imgSign up for our COVID-19 newsletter to stay up-to-date on the latest coronavirus news throughout New York One of Long Island’s newest craft breweries, the nautical-themed Small Craft Brewing in Amityville, opened its tasting room for the first time to the public over the weekend.Small Craft was founded in 2014 by brothers Gerald and Greg Sims, who grew up in Wantagh and started homebrewing 10 years ago. After deciding to turn their hobby into a business, they began searching for a location on the South Shore.“We looked from Wantagh to as far east as Lindenhurst, but everything was very expensive and didn’t have what we needed,” said Greg.But then Greg happened to work out at a CrossFit gym in Amityville that was outgrowing its space and planning to move. The brothers thought the space would be perfect for their brewery and they signed a lease at 66 Merrick Rd. in late 2016.After installing a two-barrel brewing system at the end of last year, Small Craft obtained its New York State farm brewery license, which requires it to use a certain percentage of ingredients produced in New York. One of their beers, the crisp Wanser’s Cut wheat beer, is made with 100-percent ingredients from the state.Gerald and Greg share the brewing duties and currently have nine beers on tap, covering a wide range of styles from German-style Ketcham Kolsch to Depth Charge IPA to dark beers such as Bay House Brown Ale and Dream Boat Stout.Small Craft’s comfortable tasting room has a bar and seating area, as well as counters where patrons can enjoy flights and pints while overlooking the brewhouse. The tasting room will initially be open on weekends with plans to expand hours in the summer.Once the brothers get a feel for how much beer is being consumed in the tasting room, they hope to begin distributing kegs to local bars and restaurants. But from a sample of their suds, it’s safe to say Small Craft will have smooth sailing ahead.Small Craft Brewing is located at 66 Merrick Road in Amityville. They can be reached at 631-464-0186 or on Facebook at @SmallCraftBrew.Bernie Kilkelly is the editor and publisher of LIBeerGuide.com.last_img read more

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